Mass. lawmakers cautioned on recommendations for state jobs

Once considered a routine part of the job, House lawmakers were admonished during a closed caucus this month to use caution when recommending colleagues or constituents for public sector jobs, told that verbal recommendations could be “perilous” and advised that written referrals for constituents must be doled out evenly.

By Matt Murphy

MetroWest Daily News, Framingham, MA

By Matt Murphy

Posted Feb. 19, 2013 at 12:01 AM
Updated Feb 19, 2013 at 7:21 PM

By Matt Murphy

Posted Feb. 19, 2013 at 12:01 AM
Updated Feb 19, 2013 at 7:21 PM

» Social News

Once considered a routine part of the job, House lawmakers were admonished during a closed caucus this month to use caution when recommending colleagues or constituents for public sector jobs, told that verbal recommendations could be “perilous” and advised that written referrals for constituents must be doled out evenly.

The cautionary advice came after the State Ethics Commission issued its first-ever advisory opinion last month on the topic of job recommendations, a nine-page memo that has prompted some confusion among the ranks of the Legislature and made lawmakers increasingly skittish about a practice that has been defended in recent years as a routine function of an elected official and criticized as a potentially unethical act.

House counsel Jim Kennedy briefed House Democrats and Republicans in a private, joint caucus about two weeks ago on the Ethics Commission advisory, which was issued on Jan. 18, according to lawmakers who attended.

“The impression from reading the advisory, along with his interpretation, is your best bet would be not to do them until there is clarification because there’s a perception that you could be in violation of the ethics laws. It was pretty complicated, but it makes you nervous,” said one House lawmaker, requesting anonymity to speak freely about the private meeting.

“For me, I’m putting it on hold until I feel comfortable. Basically, you’re putting yourself at risk by doing it,” the House member continued.

The House and Senate in 2011 passed a new law governing job recommendations, a reaction to the scandal within the Probation Department in which top probation officials were accused of rigging the hiring process to favor candidates recommended by legislators in an attempt to curry favor.

The new law bars state agencies from considering written recommendations on behalf of job candidates until the final stages of the hiring process, but the final version of the bill excluded a House-passed proposal to ban verbal recommendations.

“There are still a lot of questions, and nobody wants to do something that’s going to get them in trouble,” said another House lawmaker, speaking about the advice from the Speaker’s office.

A spokeswoman for the Ethics Commission said the advisory was issued – almost two years after the law was last updated – in response to questions posed by lawmakers seeking advice from the commission about how the state’s conflict of interest laws apply to job recommendations.

Kennedy was not available to discuss his memo and interpretation of the ethics bulletin, but DeLeo aides acknowledged the legal team was working to help members adhere to the law. “The Office of the House Counsel has been engaged in educating members about the Advisory,” said DeLeo spokesman Seth Gitell, in a statement.

In his memo, Kennedy told House members that the ethics advisory was “vague and ambiguous at times, which has created some pitfalls of which I want to make you aware.” Kennedy said House counsel’s office would be seeking clarification to help members avoid violating the law.

Page 2 of 3 - “For now, this much is clear: first, oral employment recommendations are perilous; and second, if you submit a written letter of recommendation on someone’s behalf, you need to be mindful of the follow-up communications you have with that person’s prospective employer. At a minimum, I recommend limiting the number of follow-up phone calls you make to check on the candidate’s status . . . ,” Kennedy wrote in a memo given to lawmakers at the caucus.

Kennedy said the Ethics Commission, if a complaint is filed, will be paying particular attention to whether a lawmaker tried to exert pressure on the hiring agency to offer a job to the recommended applicant. “Oral employment recommendations, while permissible under the law, are strongly discouraged by the Advisory,” Kennedy wrote.

The Ethics Commission advisory states that “a public official’s denial that he intended oral remarks as threats will not carry the day if a reasonable person would find his remarks threatening.”

One area of confusion that remains, according to Kennedy’s memo, is a section of the ethics advisory that states elected officials may have contact with a hiring agency while a job application is pending, but should not link any unrelated issues to the hiring of the recommended applicant.

“Until the Commission provides further clarity on these matters, either through training or new precedents, the best counsel I can provide regarding employment recommendations for constituents is to proceed with caution,” Kennedy wrote.

Some lawmakers said that in the current political climate, amidst an ongoing federal investigation into Probation Department hiring practices, recommendations that used to carry weight from lawmakers are increasingly viewed as toxic.

“The agencies are so concerned because they don’t want to get into hot water,” said a House lawmaker.

Both DeLeo and Murray, in the wake of the 2009 report from independent counsel Paul Ware, defended the practice of recommending constituents for jobs, and denied that their offices ever traded favors for jobs with the Probation Department or any other state agency.

"We recommend folks, whether it's for school or housing, whatever it may be. We make recommendations for people for jobs, it's just that," he said. "It's a recommendation. What happens thereafter in terms of whether they get the job or don't get the job, you know, that depends upon the folks making the decision. I can tell you, I do not put any undue influence on anyone relative to the hiring or non-hiring of the person,” DeLeo said in 2010.

Kennedy’s memo, and an accompanying 10-point checklist recommended to help lawmakers stay out of trouble, highlights the sensitivity around perceived patronage amidst ongoing state and federal investigations.

Senate Democrats and Republicans are expecting to be briefed by the Ethics Commission and the Office of Campaign and Political Finance on their obligations as public officials on Feb. 28 in a mandatory joint caucus, according to Senate President Therese Murray’s spokeswoman Laura Oggeri.

Page 3 of 3 - The ethics advisory makes it explicit that lawmakers must never recommend immediate family members for jobs, including spouses, children, siblings, parents or the children, siblings and parents of a spouse. It also recommends disclosing any personal relationships with a job applicant who might be viewed as a conflict of interest, including personal friendships, non-immediate family members and private business relationships.

“These types of disclosures are required even if you have acted fairly and objectively,” Kennedy advised.

After the release of Ware’s 2009 report on patronage hiring at the Probation Department, DeLeo was forced to defend a written recommendation he made for his godson, Brian Mirasolo, who, at age 28, became the youngest chief probation officer in Massachusetts history.

By law, the Ethics Commission says lawmakers may not attempt to influence employment decisions at railroad, street railway, electric light, gas, telegraph, telephone, water or steamboat corporations, or make recommendations for horse or dog racing licenses.

The House lawmakers were told that if they are going to make a recommendation for a constituent they should first verify that the individual meets the minimum job qualifications. If the applicant does clear that threshold and a lawmaker decides to make the recommendation, they must do so for all “similarly situated” constituents or risk the appearance of giving preferential treatment.

Kennedy wrote that it remains unclear what would be construed as “comparable credentials” among job applicants seeking recommendations.

House co-workers and other “legislative associates” should meet similar minimum qualifications, according to Kennedy, and all other recommendations should be made with personal stationary, email or phones with no mention of their official title.